McCarthy Marie

Reply to last week’s question.

As promised I will respond to some of the comments/questions. I will respond to Nacinimod‘s question about where he can register his copyright. The answer is that in Dominica and most of the world there is nowhere to register your copyright. This is stated in the last sentence of the first paragraph which I repeat here : “It is important to point out that Copyright comes into existence as soon as the work is created and the author needs to do nothing at all to be the owner of the copyright in his work “. The question which usually follows is “how can I prove in court that I am the author of my work?” The answer is that in the civil court, where most copyright actions take place, the judge is required to give the presumption of authorship to the person whose name appears in the “usual place”. If the opposing party wants to put the presumed author’s claim to authorship in dispute the onus is on him to bring evidence to that effect. BY the way posting a copy of your book or other work to yourself has no evidentiary value since it proves nothing at all. The United States is one of a few countries that operate a copyright registry, but it is not necessary for an author’s works to be registered for his copyright to exist. Registration however confers certain advantages the principal one being that the copyright owner is entitled to statutory damages of as much as US$150,000 per infringement and is not required to prove how much actual damage he suffered he needs only to prove that the infringement occurred.

BY the way references to law or practice on the copyright system will be to the law in Dominica unless otherwise stated.

Part B

Last week we looked at the moral rights of authors. This week we will look at what is known as the economic rights. The Economic Rights of authors are virtually the same everywhere and they fall into two very broad categories.

1. The right to reproduce the work, and
2. The right to communicate the work to the public.

Because of the tremendous growth in communication technology these two broad categories now involve many distinct acts such as (1) reproduction of the work in any manner or form; (2) exhibiting the work in public; (3) distributing the work to the public; (4) the fixation of the work on sound or visual record; (5) broadcasting the work on radio and TV. (6) Performance or presentation of the work in public; (7) the distribution of a work to subscribers to a diffusion service (e.g. cable TV or wired radio); (8) adaptation (9) translation.  With the proliferation of computers, a new category of rights have come about i.e. the right to store a work in a computer as well as the right to retrieve such information. (Known as the right of making available to the public.) Allow me digress a bit to explain what the right of adaptation is by giving a few examples. Adaptation includes acts such as the conversion of book into a dramatic work like a play or a movie; the substitution of lyrics of a song by new lyrics. In fact making any change to a piece of music other than a change of register or key is an adaptation so that these changes require prior authorization from the copyright owner.

The intention of laws of copyright (or authors’ rights which is a more descriptive term) is to enable the author or other owner of rights to derive economic benefit from his work.  Obviously the existence of the law itself does not guarantee that this will come about.  In general the extent of economic reward derived by an author depends in the first instance on the degree of public acceptability of his work.  The question which intrigues most people particularly with respect to music is this: How does an author collect the monies due to him from the multiplicity of persons and/or firms who make use of his work?

There are basically two ways in which the protection of rights of authors is actualised; (a) collectively, and (b) individually.

Whether a particular right is administered collectively or not depends on the relative economy of collective versus individual administration. Collective administration is the Norm for the so-called “Petits droits” (small rights) as against the “Grand-droits”.  Grand-droits or Grand rights refer to the kinds of rights which produce relatively large royalties per use and where there are few users involved.  An example of a “Grand-droits” is the use of music in the presentation of a stage play.  In such a case the composer or his publisher can negotiate a fee with the producer of the play, since even if the play might be repeated a number of times there is only one user and the individual composer or publisher can exercise effective control.  The same would be true for books.  The writer deals with a publisher, who commercialises the book and pays the author his fee.  However, for the reprographic right i.e. the right to make photocopies as well as online reproduction, authors and publishers have begun to administer this right collectively because each author’s work can be copied many times by many persons in many countries and thus the individual owner cannot effectively control the use of his work.

Modern Collective administration was developed in France in 1777 by the Society now known as SACD  (Society of Dramatic Authors and Composers) for dramatic writers and composers.   In 1851 “La Societe d’auteurs, compositeurs et editeurs de Musique, SACEM ( In English this means the Society of Authors, Composers and publishers of Music) was established to look after the right of public performance for authors, composers and publishers of music,. This society has established the template that is followed throughout the world.  The primary purpose of these societies is to administer collectively the small rights of their members.

These small rights are essentially the rights of public performance and communication to the public by way broadcasting, cable transmission, online use etc.(collectively known as the performing right).  These societies are known as authors’ societies and are not to be confused with authors’ guilds, composers’ guilds or musicians unions.  How do these societies in fact administer the rights of their members?

Authors Societies generally take the form of non-profit companies or organizations.  Their memberships generally assign their performing right to the society.  Assignment is a legal transaction which transfers ownership of the right or rights on whatever terms are stated in the assignment from the Assignor (the original owner) to the Assignee.

The society becomes the owner of the rights assigned and can therefore issue authorizations or take action for unauthorised use in its own name. At the present time, there are more than two hundred such societies in the world and the political systems under which they operate run the entire gamut of the political spectrum from capitalist in the USA to Communist in the People’s Republic of China.  All of these societies are linked together in an organization known as “La Confederation Internationale des Societies d’Auteurs et Compositeurs (CISAC) (The International Confederation of Authors and Composers Societies).  These societies have a reciprocal representation agreement with each other of which the two principal features are:

(a)              Each society represents the interest of all the other societies in the countries in which it operates

(b)              Each society treats the works of the members of the other societies in the same way as its own members.  This follows the fundamental principle of both the Berne convention and the TRIPS agreement.

Essentially, then, each society is not only the owner of the performing and broadcasting rights of its own members, but in a practical sense it is also the owner of the performing right of virtually the entire world repertoire of copyright music.

These societies operate by granting the user a blanket license, which allows the user to use any and all music controlled by the society on payment of a fee.  While the user pays his fee without regard to which piece of music he actually plays the composer’s payment are related to the amount of use made of his music in different situations.  As a matter of fact the bulk of the work of authors ‘societies is concerned with analysing programme returns and determining the relevant payments to be made to each individual author or publisher.  This work involves an enormous amount of minutiae and to give you an example of some of the complications consider a possible division for one piece of music:

As you will notice there are three authors, two composers and three publishers who have interests in the song.  We have assumed the normal division between publishers on the one hand and the authors on the other.  Most societies have rules which specify that the publishers’ share will not be greater than 50% (some societies like SACEM specify the publisher’s share to be 1/3 of the total).  You will also have noticed that the authors belong to four different societies.  All of this information is to be noted, stored and divisions made accordingly.

There is another important right in music which we have not mentioned and that is the mechanical right.  This is the right to use music in the manufacture of records, tapes and videos in phonograms and videograms as they are known. This right is a subset of the right of reproduction which is really the most important right in the bundle of rights that make up copyright.

In some countries of the world there are separate authors’ societies which look after these rights (MCPS in the UK).  In other countries the same society looks after both sets of rights (GEMA in Germany) and in others there is no collective administration of these rights (USA).  The tendency however has been for more collective administration and most of the new societies being formed look after both sets of rights.  In connection with mechanical rights there are two important points to note:

(1)              The existence in some countries notably the US, of a statutory recording license.  Essentially this provides for new recordings to be made and phonograms produced from a musical work as long as the author had previously allowed recordings to be made and phonograms produced. However no adaptation as describes above can be made without authorisation.

Because of this the rate of Royalty to be paid is fixed by law in advance. In the US it is presently 9 cents per song. Up till 2003 there was a compulsory recording license in Dominica (but the new law which took effect in November 2003 has abandoned the compulsory recording license.)

(2)              The “mechanical Right” royalties are also due for reproduction in the digital domain for example downloads of music from digital retailers such as I-Tunes, Amazon etc. These fees of course are paid by the digital retailers through the Author’s society in the country where the customer downloading the music resides.